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Maugrim_The_Reaper
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Post by Maugrim_The_Reaper »

Roja wrote:In US copyright law, the presumption is that once you have possession of the good, you can use it as you like - "Fair use". Fair use does not include the right to make copies, the right to make a modification and pass it off as your own, and so on.

To gain those rights, you have to exchange some rights. Thats generally done in a license. The license specifies what rights the original copyright holder grants to you, and what you have to accept in exchange.
Some would argue that...well, here in Europe at least. Our own general view of Fair Use has been challenged too many times to count, and a bit like the GM debate EU governments at least are under a lot of pressure to not only protect, but to extend the definition. The French I think are still recovering from that little shock a while back...

Maybe my view of the loophole differs from yours? I consider it solved if the source is available if I declare such in a license, not necessarily a forced to offer package based solely on a license term without developer involvement (i.e. whether or not such a facility is made available). The GPL was never suitable for a non-choice term.

I can't see a full (make it available if accessed across a network) coming into play. It has to be optional in some respect and up to each developer. Otherwise you'd have dozens of programs effected from ssh clones to who knows what.
Quote: "To 'propagate' a work means doing anything with it that requires permission under applicable copyright law, other than executing it on a computer or making private modifications."
This is where I get confused (and not sure why I should be confused). Where does it state the conditions upon which the additional terms are and are not triggered?

From my view, the Affero clause made it clear that the facility was part of program whether distributed or not - and its "removal" was forbidden. Where are the exceptions to that rule? Sure it can be removed privately - but its appears forbidden specifically when the program (regardless of private execution) is being interacted with remotely by other users.

The GPL additional clause offers much the same opportunity with an optional user term...

I don't see it stated anywhere such a clause requires propagation - the additional term defines its own trigger (accessible across a computer network). That seems clearly aimed at any interaction with the program's interace - not its execution.

To avoid beating around in circles - I could be completely missing the point (hardly the first time that happened ;)) but I seem to be missing your point.

I write Program A, distribute under GPL v3 with the AGPL clause attached. I have included a link to a gzip archive of the source code. User A downloads, modifies, hosts, and...does what to escape the AGPL phrasing??? Remove it? Its forbidden to do so if other users can interact with the program across a computer network. Alter it or hide it some way?

I just know I am missing something completely obvious in your post - but what?

I'm off to read the license again...before the sky falls...;)
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Post by Roja »

Maugrim_The_Reaper wrote:This is where I get confused (and not sure why I should be confused). Where does it state the conditions upon which the additional terms are and are not triggered?
*ALL* terms and conditions in the license are triggered the same way. There are no exceptions, and no extensions.

You can do whatever you want when executing the program (if that is all you are doing), and thats the loophole. With a webservice, you don't propogate the program at all. You don't distribute it, you don't share it, nothing. You are only *executing* it, which under the US fair use rules, has no substantial restrictions.

You are looking at it backwards. You are asking "Here is a rule, whats stopping the rule from occurring". The answer is the rules don't come into effect if you are just executing it.
Maugrim_The_Reaper wrote:From my view, the Affero clause made it clear that the facility was part of program whether distributed or not - and its "removal" was forbidden.
Wrong on the first part, and right on the second. Removal is forbidden, but only when distributed.
Maugrim_The_Reaper wrote:Sure it can be removed privately
Exactly.
Maugrim_The_Reaper wrote:but its appears forbidden specifically when the program (regardless of private execution) is being interacted with remotely by other users.
The rule only comes into effect when you are distributing the program. Its enumerated clearly at the beginning of the contract, which states not only the triggers, but also that the specific act of running it privately:
This License gives unlimited permission to privately modify and run the
Program
, provided you do not bring suit for patent infringement against
anyone for making, using or distributing their own works based on the
Program.
Unlimited. You can modify and run privately all you want, period.
Maugrim_The_Reaper wrote:I write Program A, distribute under GPL v3 with the AGPL clause attached. I have included a link to a gzip archive of the source code. User A downloads, modifies, hosts, and...does what to escape the AGPL phrasing??? Remove it? Its forbidden to do so if other users can interact with the program across a computer network. Alter it or hide it some way?
That forbidding only occurs if they are providing their code to someone else. Distributing it. By definition, if they are privately running and modifying it, those rules don't apply. They have unlimited permission!

Think of the problems as being a list. In that list is scenarios involving patent warfare, DRM, distribution, and more. The GPLv3 covers a huge number of those problems. The one it cannot is webservices. Doing so would invalidate private modification ("Fair use").

The additional license term could require your firstborn. It wouldnt change the fact that you didnt agree to it, and did nothing to cause that term to come into effect as long as you did not propogate/distribute the code.
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Maugrim_The_Reaper
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Post by Maugrim_The_Reaper »

This License gives unlimited permission to privately modify and run the
Program, provided you do not bring suit for patent infringement against
anyone for making, using or distributing their own works based on the
Program.
It can't be unlimited. If its a PHP app, and its publicly interactive, and we consider that private use, and FSF agree with that interpretation then the user can fall back on his "unlimited" permission and do a lot more that just the web services loophole...
Unlimited. You can modify and run privately all you want, period.
Can they remove a copyright notice? In a PHP program hosted online? Is that the same as a private program without a public interface?

Where's the dividing line - if any? Private use is one thing - but surely there's something for a public performance. Yeah, covered ground... I feel slightly dizzy...lol
*ALL* terms and conditions in the license are triggered the same way. There are no exceptions, and no extensions.
Maybe I am looking at it backwards. If I am - then what exactly does the GPL/AGPL buy us? Both contain specific language aimed squarely at the loophole - yet if those measures are limited by a distribution trigger then they are next to useless...which I suppose is your point...heh. They should be worded more clearly in that case - if I can get confused over a simple concept then someone needs to revisit their license and write it clearly.

Reading it again - it still seems obvious I'm right. Not saying I am with as much certainty as before by any means - but I'm not seeing it. Maybe there's too many trees...

I'm sufficiently convinced to go hide in the closet until I read that license again...and figure out what the local case law has to say on the matter (if anything). Then I'm off to read any recent comments - its still a draft and I don't like that "unlimited" word you noted. Unlimited? Phaw!
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Post by Roja »

Maugrim_The_Reaper wrote:It can't be unlimited.
Technically speaking, of course it can't. But for most intents and purposes, legally, it is.
Maugrim_The_Reaper wrote:If its a PHP app, and its publicly interactive, and we consider that private use
Not only do *we* consider that private use, most of the available caselaw to date does as well.
Maugrim_The_Reaper wrote:and FSF agree with that interpretation then the user can fall back on his "unlimited" permission and do a lot more that just the web services loophole...
Yes, there are other things they can do.
Maugrim_The_Reaper wrote:
Unlimited. You can modify and run privately all you want, period.
Can they remove a copyright notice? In a PHP program hosted online? Is that the same as a private program without a public interface?
This one is a little bit trickier. Based on my understanding of the GPL, and the caselaw, I'd argue that they could - again, if they aren't distributing it.
Maugrim_The_Reaper wrote:Where's the dividing line - if any?
Thats the trick. If removing the copyright notice isn't legal (for public performance) then the same could be true for the view-source requirement. To my understanding, public performance is essentially the deadzone of copyright protection - it simply doesn't cover that area yet.
Maugrim_The_Reaper wrote:Private use is one thing - but surely there's something for a public performance. Yeah, covered ground... I feel slightly dizzy...lol
See why I was so concerned? Thats right on the money. Public performance is the "Dragons be here" section of the copyright map.
Maugrim_The_Reaper wrote:If I am - then what exactly does the GPL/AGPL buy us?
They protect (in a substantial, definitive, and well-defended way) the share-alike / play fair requirements for anyone distributing the code.

Understand that for the vast majority of programming languages, distribution is about *binary* (compiled) versions of the code. PHP doesn't have that issue. Also understand that until a few years ago "Web services" was a virtual rarity. As such, copyright law (at least in the USA) hasn't caught up with these changes.

It buys us a tremendous amount of protection for the most common (and even not so common) situations. It protects compiled and non-compiled programs. It protects distributed modified versions. It protects copyright notices, and quite a bit more.

It just can't protect against the public performance issue.
Maugrim_The_Reaper wrote:Both contain specific language aimed squarely at the loophole - yet if those measures are limited by a distribution trigger then they are next to useless...which I suppose is your point...heh. They should be worded more clearly in that case - if I can get confused over a simple concept then someone needs to revisit their license and write it clearly.
I think its intentional, actually. I think they acknowledge the shortcoming in the copyright law, which is why they are explicit about "Unlimited use". I think they want to reduce the risks as much as possible, within the realms of the law. If they happen to scare people into not abusing/using the webservices loophole, all the better.

As I said before, to try and fix that issue, they'd have to essentially try to 'fix' copyright law, which might end up making other undesirable laws worse, AND make the GPL weak and easy to defeat.

Or put another way, it adds more protection to the distribution case, and adds a nice bluff to the webservices loophole. No harm in either, really.
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Maugrim_The_Reaper
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Post by Maugrim_The_Reaper »

The question then becomes if I didn't see it, you can bet many other people won't. Reading every scrap from Google for the last hour points the same way. Hell, I can't even see it on debian-legal, or the GPL v3 comments to date.

Might be worth commenting on you know. I'm off now to bury myself in Irish and UK case law. It appears the GPL v3 finally caught on and closed one other loophole - compilations. Neat. I think I used that argument myself a few times before figuring out the rest of the world didn't share the exact same concept - well, no one ever claimed Irish law was going to be world reknowned...;). Another Irishism bites the dust...

Maybe I'll figure out why you're the only one thus far to have this view point that I've encountered - everyone seems to take it as Gospel that the GPL v3 closes the loophole - end of story.
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Post by Roja »

Maugrim_The_Reaper wrote:The question then becomes if I didn't see it, you can bet many other people won't. Reading every scrap from Google for the last hour points the same way. Hell, I can't even see it on debian-legal, or the GPL v3 comments to date.
Actually, this issue has come up on debian-legal, in the threads about the draft. I don't have them handy, but I'll see if I can dig through and find the relevant postings talking about it. Its definitely an issue being discussed. Also in the draft comments system, there are several entries that talk about it. (The system can be tricky to navigate if you don't expect it at first.. there are something like 8-10 pages of comments, and it only displays the first page by default).

There are also several comments by Bruce Perens over the last few years talking about the need to encourage the move to include public performance in copyright law in the US. If you google on Bruce Perens "public performance", you'll find more than a few places (including a nice linuxworld article) talking about it.

Its not just me.. I'm not imagining it.
Maugrim_The_Reaper wrote:It appears the GPL v3 finally caught on and closed one other loophole - compilations. Neat. I think I used that argument myself a few times before figuring out the rest of the world didn't share the exact same concept - well, no one ever claimed Irish law was going to be world reknowned...Wink. Another Irishism bites the dust...
;) I'm fairly certain we had that exact conversation too! Yes, they did solve that issue quite well, and finally put a realistic definition around it. Previously, much like I suspect the webservices issue is being handled in v3, it was mostly a poorly defined bluff, hoping that no one would push too hard.

It seems they gained more confidence in that section, and shored it up. Its very encouraging. Thats why I'm still fairly gung-ho for the GPL. Even though it has a (to me, obvious) loophole for a very specific scenario, it solves a ton of other problems in a very solid way.
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Post by Roja »

Maugrim_The_Reaper wrote:The question then becomes if I didn't see it, you can bet many other people won't. Reading every scrap from Google for the last hour points the same way. Hell, I can't even see it on debian-legal, or the GPL v3 comments to date.
http://lists.debian.org/debian-legal/20 ... 00248.html <- "Given up on the 'ASP loophole' yet? :-)"

http://lists.debian.org/debian-legal/20 ... 00278.html <- Comments about Bruce Perens' stance on Public Performance not being covered in the GPL, further discussions on the loophole

http://lwn.net/Articles/152881/ <- A slew of posts discussing the loophole

I can't track down the post I read by Bruce that really dug into the details, but you get the idea from the above.

Its widely discussed.
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Maugrim_The_Reaper
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Post by Maugrim_The_Reaper »

Actually, this issue has come up on debian-legal, in the threads about the draft. I don't have them handy, but I'll see if I can dig through and find the relevant postings talking about it. Its definitely an issue being discussed. Also in the draft comments system, there are several entries that talk about it. (The system can be tricky to navigate if you don't expect it at first.. there are something like 8-10 pages of comments, and it only displays the first page by default).
The use of AGPL 2d and similar has cropped up I know - not sure whether it referred back to the legal complications rather than going back to copyleft weakening and DFSG. I don't remember seeing it if it did - I'll scan through more carefully this time.

When was a legal question posted in the comments? I ran through maybe 350 of the 450+ comments yesterday (I just listed everything - that comment system is a nightmare to navigate). I'll get to the remainder later today.
Wink I'm fairly certain we had that exact conversation too! Yes, they did solve that issue quite well, and finally put a realistic definition around it. Previously, much like I suspect the webservices issue is being handled in v3, it was mostly a poorly defined bluff, hoping that no one would push too hard.
We probably did too - I was distributing QS as a copyrighted compilation for a while. At the time it made perfect sense under Irish copyright law. It was only later I realised the concept was either missing or defined differently elsewhere and dropped it. Nice to see it addressed directly - clear up the confusion.
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